[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 488
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 489 The contract at the bottom of this action was between the defendant on one side, and the plaintiff and the Lake Shore Michigan Southern Railway Company on the other. The latter company was not joined as plaintiff, but the omission, if in any aspect of the case important, was obviated by a stipulation between the parties to the suit. The breach complained of is the omission of the defendant to pay $3,569.14 as freight earned in the transportation and delivery to it of three thousand two hundred and fifty-one barrels of oil, and one hundred and twenty empty barrels.
The referee found that only one hundred and fifty barrels of oil, and sixty-nine empty barrels were in fact delivered to the defendant, and gave judgment against it for freight earned in transporting them, estimated at the contract-price. The correctness of this decision depends upon the true construction of the agreement.
First. It seems obvious that while the mode of transportation was to vary with the season of navigation, yet whether it was all by rail, or partly by water, the plaintiff was bound to deliver the freight "at the warehouse of the defendant." This was the undertaking: to load, and transport and unload; and this last operation was to be performed in either case. Whether the carriage was by land or water, whether by rail or barge, could make no difference. The plaintiff agreed to pay all terminal *Page 491 expenses, and it was only on delivery at the warehouse that the defendant undertook to pay the price of transportation. It was, therefore, essential to performance, and without it, or lawful excuse for failure, the price agreed upon for carriage was not earned. (Western Transportation Co. v. Hoyt, 69 N.Y. 234;Richmond v. Union Steamboat Co., decided December, 1881, by this court.*) Such delivery was not, in fact, made; and while there was a difference of opinion in the court below (20 Hun, 39), it was not upon this point.
Second. A further question was raised, and as to it the learned judges did not agree. It hung, on a clause in the contract by which the defendant assumed "all risks and loss of its property by fire when in the charge or custody of the plaintiff," "whether said property is being moved upon cars or barges, or is stored or awaiting transportation at any point;" and the conceded fact, that after delivery of so much as is above referred to, and while the rest was in the plaintiff's barges, "an accidental fire consumed it."
The appellant's contention is, that without this stipulation, the defendant might refuse to pay freightage in such a case, and "that risk to the carrier, the defendant agreed to assume, and thereby waived the right to claim full delivery." It is sustained by an argument of considerable ingenuity, but not sufficient to raise a doubt of the intention of the parties, or the propriety of the referee's refusal to find in accordance with the plaintiff's view. The risks are not those of every accident or contingency, but only damages from fire, and the loss is limited to one from the same element. So it is confined to the defendant's property; not its property at all times or under all conditions, but while in charge of the plaintiff, and while it is being moved upon cars or barges, or is stored or awaiting transportation. How either one of these terms can be made to apply to a risk incurred by the plaintiff, or to an inchoate obligation which is in no sense property of the defendant, I am unable to perceive. Very different language is needed to bring *Page 492 within the undertaking "risks inflicted by fire" and tending to a loss of partially-earned freight. So construed, it would go beyond natural justice, which requires payment of the debt one owes, and nullify the very language of the contract, which, following it, makes the obligation of payment depend upon the actual delivery of the goods.
Except for the stipulation, the plaintiff would be bound to pay for the loss of the goods destroyed, and its whole purpose is served by relieving the plaintiff from that obligation. It does not permit us to hold that destruction of property is equivalent to its delivery, or that the event which makes performance impossible entitles the carriers to that compensation, which, by their agreement, was to come only from performance. It relieves them from that absolute liability which would otherwise follow the general promise to transport and deliver, and by reason of which the carrier was held in Harmony v. Bingham (12 N.Y. 99), and other like cases.
I do not think the evidence of the general usage as to the delivery of freight, or the contract upon that subject between the owners of the barge and the plaintiff, was necessary. The contract was sufficiently explicit and in accord with both. If, however, as the appellant contends, it was susceptible of a construction different from that which has been given to it, it was not improper for the referee to receive the evidence in order that, from this usage, the course of business and the practice of the plaintiff, he might determine the intention of the parties. The intention of the plaintiff might be gathered from its contract with the barge owners, and that of the defendant from the general usage with which it was familiar, and for aught that appears, the evidence was received upon the assumption that plaintiff and defendant knew, at the time of contract, both the custom and the terms of the agreement between the plaintiff and the owners of the boats. (2 Greenl. Ev. 251.) Nor can the back charges — those paid by the plaintiff to its co-contractor — be recovered. They were part of the price for transportation, and cannot be separated from the whole. The duty of the plaintiff and its associate attached on the receipt *Page 493 of the defendant's property, and was to continue until they placed it in the defendant's warehouse. They may recover for each barrel so delivered, but not for any others.
We find no error in any of the conclusions in the court below, and think the judgment rendered by them should be affirmed.
All concur.
Judgment affirmed.
* Ante, p. 240.